Frequent readers know that I am a strong supporter of immigration**. Unfortunately our two major political parties have more mixed feelings, at best, about immigration. Here is your one-sentence guide to the two parties' positions on immigration:

Republicans want immigrants to work but not vote, while Democrats want them to vote but not work.Latest proof here.

I will add that I don't understand this line from the linked article:

I don't personally care all that much about the level of illegal immigration. The current numbers strike me as reasonable.

I am not sure how anyone can consider the levels of illegal immigration reasonable. Some Republicans obviously consider these numbers unreasonable because they want the immigrants gone. But I, even as a strong immigration supporter with many immigrant acquaintances, think the number is unreasonable as well. If we are going to de facto let these folks stay, why should we make every step of their life, from driving to banking to working, a total hassle? Why make all these hard working and generally law-abiding people afraid every moment that they may get deported, or make them subject to the harassment whims of some jerk like Joe Arpaio?

There seems to be a large portion of the country that is willing to allow these folks to stay but want to create some kind of lower-tier immigration status for them. Fine, then let's do that. Let's create a lower-tier (e.g. reduced access to government services and benefits) of legal presence in this country -- guest worker, whatever -- that is simple to obtain and does not involve waiting on lists for a decade.

** This is something I have probably moved the furthest on in my life. At sixteen, when I was a traditional Texas Conservative Republican, I supported immigration restrictionism. Since then, I have found such a position incompatible with my belief in individual rights and free markets, and through my experience in life have come to appreciate the value immigrants bring to this country.

A while back I got a LOT of feedback when I asked if Republicans really wanted to create 12 million refugees. My assumption was that if one opposed substantially liberalizing immigration quotas (ie making the quota near unlimited) and one opposed "amnesty" for the 12 million currently illegal immigrants in this country, the only alternative was to try to deport them all.

I got a lot of responses back from all over the political spectrum, but the one I found the most surprising was to say that I was setting up a false choice. The only alternative to amnesty was not deportation. Many advocated for what I would call an "illegal but tolerated" status for these 12 million people, sortof a parallel to how marijuana is treated in many states. I have a few reactions to this:

Isn't this the status quo? People got really angry with me in the comments for trying to create a straw man position (deportation) for Republicans by not considering this "illegal but tolerated" status. But I can say with all honesty it never crossed my mind. The one theme I get from every Republican candidate and nearly every Conservative pundit is that the current immigration situation is broken and intolerable. So I am still confused. If "amnesty" is still intolerable and the current situation is intolerable and deportation is not what they want (or at least not what they are willing to admit to in public) -- then what is it that Republicans want?

To avoid charges of racism or economic Luddite-ism (since both history and most economic studies show immigration to be a strong net positive), immigration restrictionists often argue that what they are really defending is the rule of law. Immigration is illegal and what they can't abide is seeing so many people flaunt the law. But what could possibly be more corrosive to the rule of law than an "illegal but tolerated" status? We give effective amnesties all the time. Colorado didn't wait to legalize marijuana until every past illegal user had been prosecuted.

"illegal but tolerated" is a license for abuse and harassment. It is why organized crime flourishes in narcotics and in alcohol when it was illegal but tolerated. It is why women get abused in prostitution. It creates unpersons with limited access both to the legal system and to the basic plumbing of the modern world (e.g. banking). It drives people underground, pushing people who at worst committed a victim-less crime (ie illegal immigration) into crimes with real victims (e.g. identity theft).

I continue to argue that Conservatives are abandoning their free market principles when they advocate for strict limits on immigration. I have heard folks like Sheriff Joe say that these folks are "trespassing" in the US. Well, they are only trespassing if we are Marxists and adopt the view there is no such thing as private property and everything belongs to the government. In a free society, the actual questions involved are whether an immigrant can rent an apartment from me, or work for me, or bank with me, etc. Those are supposed to be private decisions. In effect, Conservatives are arguing that I can only hire from or rent to people on a government-approved list. That does not sound like free markets and small government to me.

I am not blind to the problems that our generous welfare policies have on immigration. I would argue that what is needed is a new immigration status. In a sense, those who want 12 million people to be "illegal but tolerated" are essentially arguing for the same thing, but frankly that solution sucks for everyone. I would argue for institutionalizing a new level of legal presence in this country, well short of "citizen" but beyond "illegal but tolerated."

As an aside, for years the Roman Empire was really good at this, at least in its early years. It grew and adopted and eventually commanded the loyalty of a broad range of peoples and cultures in part because it was incredibly flexible in thinking about citizenship status. It had many custom levels, such as Civitas sine suffragio (citizenship without the vote). Many Conservatives argue that Barbarian immigration brought down the Roman Empire and use that as an argument for modern restrictions. But in fact, I believe just the opposite -- that it was the Romans losing their knack for citizenship flexibility and integrating new cultures that contributed to their downfall.

Anyone may enter or reside in the US. The government may prevent entry of a very short list of terrorists and criminals at the border, but everyone else is welcome to come and stay as long as they want for whatever reason. Anyone may buy property in the US, regardless or citizenship or residency. Anyone in the US may trade with anyone in the world on the same terms they trade with their next door neighbor.

The US government is obligated to protect the individual rights, particularly those in the Bill of Rights, of all people physically present in our borders, citizen or not. Anyone, regardless of citizenship status, may buy property, own a business, or seek employment in the United States without any legal distinction vs. US "citizens"

Certain government functions, including voting and holding office, may require formal "citizenship". Citizenship should be easier to achieve, based mainly on some minimum residency period, and can be denied after this residency only for a few limited reasons (e.g. convicted of a felony). The government may set no quotas or numerical limits on new citizenships.

All people present in the US pay the same taxes in the same way. A non-citizen or even a short term visitor pays sales taxes on purchases and income taxes on income earned while present in the US just like anyone else. Immigrants will pay property taxes just like long-term residents, either directly or via their rent payments.

Pure government handouts, like Welfare, food stamps, the EITC, farm subsidies, and public housing, will only be available to those with full US citizenship. Vagrancy and squatting on public or private lands without permission will not be tolerated.

Most government services and fee-based activities, including emergency services, public education, transportation, access to public recreation, etc. will be open to all people within the US borders, regardless of citizenship status, assuming relevant fees are paid.

Social Security is a tough beast to classify - I would put it in the "Citizen" category as currently structured (but would gladly put it in the "available to everyone" category if SS could be restructured to better match contributions with benefits, as in a private account system). But, as currently configured, I would propose that only citizens can accrue and receive SS benefits. To equalize the system, the nearly 8% employee and 8% employer social security contributions will still be paid by non-citizens working in the US, but these funds can be distributed differently. I would suggest the funds be split 50/50 between state and local governments to offset any disproportionate use of services by new immigrants. The federal portion could go towards social security solvency, while the state and local portion to things like schools and medical programs.

It may be possible to earn-in to benefits in #5 and #7 based on some cumulative tax payment history. For example, unemployment taxes are really close to an insurance policy, such that a couple of years of payments into the system could make one eligible for benefits. Given how much fraud I see on this from citizens**, I can't believe immigrants would be any worse.

One of the reasons, I think, that we struggle so much with the immigration question is that we really only have two options to offer -- not letting people in, or giving them close to full citizenship rights. I think we would have the same debates on whether we should let people drive if the only two speeds a car could go were zero and 90 MPH.

For most of the people who are trying to get into this country illegally, the issue is not necessarily that they want full citizenship -- they just want to be present. They want to be able to live, and drive, and accept employment. While they would like it, they don't necessarily need to vote or be eligible for social security disability payments. We need new statuses that allow for presence and productivity but are short of full citizenship.

In this sense, I think many Conservatives are 180 degrees wrong when they invoke the experience of the Roman Empire. The modern argument is that the Romans are an example of what happens when you allow yourself to be overwhelmed by "barbarians" from the outside. But in fact, I have argued many times that the real Roman failure was that they lost their early ability to flexibly absorb people of other cultures. Here is what I wrote in my take on five reasons for the fall of the Roman Empire:

3. The Romans lost their ability to be innovative in including new peoples in their Empire. The Romans had a bewildering array of citizenship and tax statuses for different peoples who joined or were conquered by the empire. For hundreds of years, this innovation was hugely successful. But by the 4th and 5th centuries they seemed to have lost the trick. The evidence for this is that they could have solved multiple problems -- the barbarians at the gates and the abandonment of farm land and the need for more soldiers -- by finding a way to settle barbarians on empty farm land. This is in fact exactly what the barbarians wanted. That is why I do not include the barbarian invasions as one of my five, because it did not have to be barbarian invasions, it could have been barbarian immigration. Gibson's thesis was that Christianity killed the Roman Empire by making it "soft". I don't buy that, but it may have been that substituting the Romans' earlier incredible tolerance for other religions in their Pagan period with a more intolerant version of Christianity contributed to this loss of flexibility.

And if you really want a modern parallel with the fall of the (western) Roman Empire, try this other point I made:

4. Hand in hand with #3, the Roman economy became sclerotic. This was the legacy of Diocletian and Constantine, who restructured the empire to survive several centuries more but at the cost of at least an order of magnitude more state control in every aspect of society. Diocletian's edict of maximum prices is the best known such regulation, but in fact he fixed most every family into their then-current trades and insisted the family perform the same economic functions in all future generations. Essentially, it was Ayn Rand's directive 10-289 for the ancient world, and the only reason these laws were not more destructive is that the information and communication technologies of the time did not allow for very careful enforcement.

John Hinderaker had an article titled "THE TIMES GOES KNOW-NOTHING ON IMMIGRATION". In it, he criticizes the New York Times' for being too supportive of open immigration. He proceeds to point out what he believes to be serious negatives of immigration.

I won't go back to my defenses of immigration today. But I did find his article title ironic. Was it purposefully so? I can't imagine that it was. The word "Know-Nothing" is most associated in American History with the Know Nothing party, formerly the Native American party (meaning "native" white folks, not indigenous peoples). As you might guess from the name, their main rallying cry was to limit or stop immigration -- at the time their ire was mainly aimed at the Irish.

This is obviously ironic because from historical use, it is Hinderaker that is going know-nothing, not the Times. And further ironic because the Irish, whom the Know Nothings wanted to keep out, now are considered by most Conservatives to be part of the backbone of America that is being threatened by all these new immigrants. Most of the arguments he uses against immigrants are virtually identical to those used, and since proven incorrect, by the Know Nothings in the 19th century.

Postscript: The term Know-Nothing, if I remember right, came not because they were ignorant, but because they tended to be very secretive. When asked about their party, they would answer that they know nothing (this works best for those who watched Hogan's Heroes and can say this in a sergeant Schultz voice; if you are too young for Hogan's Heroes, then imitating Ygritte in GOT is acceptable).

I am wondering if this performance represents a failure of Obama's staff to perform even the most rudimentary ideological Turing test. I am sure it has not been discussed on Lefty blogs, but it would take only the briefest perusal of center or Right news sources to guess that this would be the first and most obvious challenging question Obama would get on his Immigration decision. Is the President's staff simply not used to getting anything but softball questions? Or are they just incompetent?

First, congrats to many millions of people who can remain in this country, a status they should have always have had. We can argue whether anyone who makes his or her way over the border should be able to vote or draw benefits, but there is no doubt in my mind that they should be able to live anywhere they can pay the rent and work anywhere that there is an employer willing to pay them.

I am willing to accept the analysis of folks like Ilya Somin who say that the President's non-enforcement decision on immigration laws is legal. But I think his concept of "precedent" when he says there are precedents for this sort of thing is way too narrow. This is an important, dangerous new precedent.

What I think folks are missing who make this argument about precedent is that while many examples exist of the Executive Branch excercising proprietorial discretion, the circumstances are without precedent in both scale and well as in its explicit defiance of legislative intent. One can argue that Reagan's executive actions vis a vis immigration provide a precedent, for example, but Reagan was essentially following the intent of then-recent Congressional legislation, arguably just fixing flaws with executive orders in the way that legislation was written. What he did was what Congress wanted.

The reason I think Tiberius Gracchus is a good analog is that Gracchus too took actions that were technically legal. Tribunes always technically had the legal power to bypass the Senate, but in hundreds of years had never done so. Despite their technical legality, his actions were seen at the time as extremely aggressive and plowing new Constitutional ground, ground that would soon become a fertile field for authoritarians to enhance their power.

Somin includes the following, which I think is an example of where defenders of the President's process (as different from the outcomes) are missing reality. He writes:

I would add that the part of the president’s new policy offering work permits to some of those whose deportation is deferred in no way changes the analysis above. The work permits are merely a formalization of the the president’s exercise of prosecutorial discretion here, which indicates that the administration will not attempt to deport these people merely for being present in the United States and attempting to find jobs here. They do not purport to legalize their status, and the policy of nondeportation can be reversed at any time by the president or his successor.

This is one of those statements that are technically true, but totally obtuse at the same time. Issuing formal get-out-of-jail-free cards to 5 million people is unprecedented. Think of it this way: Imagine a Republican President who is opposed to the minimum wage. The Executive branch is tasked with enforcing that law, so wold the folks defending the President's methods also argue hat the government can issue permits to 5 million businesses allowing them to ignore labor law? Or emissions standards? Or insider trading laws?

People are just being blinded by what they rightly see as a positive goal (helping millions of people) if they fail to see that the President issuing licenses to not be prosecuted for certain crimes is a huge new precedent. Proprietorial discretion is supposed to be used to avoid patent unfairness in certain cases (e.g. the situation in Colorado with conflicting state and Federal laws on marijuana). It is not meant to be a veto power for the President over any law on the books. But I can tell you one thing -- it is going to be seen by future Presidents as just this. Presidents and parties change, and for those of you swearing this is a totally legal, normal, fully-precedented action, be aware that the next time 5 million wavers are issued, it may well be for a law you DO want enforced. Then what?

Update: Libertarians are making the case that the Constitution never gave Congress the power to restrict immigration. I could not agree more. However, I fear that will have zero impact on the precedent that will be inferred from all this. Because what matters is how the political community as a whole interprets a precedent, and I think that this will be interpreted as "the president may issue mass waivers from any law he does not like." Now, since I dislike a hell of a lot of the laws on the books, perhaps over time I will like this precedent. But the way things work is that expansive new executive powers seldom work in favor of liberty in the long run, so I am skeptical.

Some libertarians, who would normally be all for open immigration, have expressed concern about -- in the name of liberty -- allowing into the country people who will generally vote against it. I have at times shared this concern but in the end find it wanting.

However, I have personally observed this happening in both of the recent states in which I have lived (Arizona and Colorado). But the source of the problem has not been immigration from Mexico or any other country but from California. Californians seem hell-bent to escape the mess they have made of their state. They run to other states complaining of the disaster they are escaping. And then they proceed to vote for the same taxation and regulatory policies that screwed up California.

Arizona state politicians are excited to get all that new income tax money. While I am happy to see new wealth and talent flowing into our state, I fear that these new immigrants are plague carriers, bringing the virus of out-of-control state power to heretofore only mildly infected states.

I personally support much more open immigration, as do many other libertarians. When I get push-back from my libertarian friends, it generally is on two fronts:

You can't combine open immigration with a welfare state -- this leads to financial implosion

Open immigration allows illiberal, anti-democratic people to take power through the democratic process (a phrase I stole from here, though it is not actually about immigration). In the name of liberty, we let people come in and vote for authoritarian illiberal measures.**

I agree that both of these are real problems. The key for me is to disassociate legal presence in this country from citizenship. It should certainly be possible to have multiple flavors of legal presence in this country. At level 1, anyone can legally be present, seek employment, buy property, and have access to certain services (e.g. emergency services). At level 2, history of working and paying payroll and income taxes gets more access to welfare-state sort of programs. Over time, this may or may not lead to full citizenship and voting rights, but there is no reason we can't still be careful with handing out full citizenship while being relatively free with allowing legal work and habitation.

** I have observed a US internal version of this. People run away from California to places like Arizona and Texas to escape California's dis-functionality But as soon as they arrive in their new home, they start voting for the exact same crap that sank California.

When it was over, Sheriff Paul Babeu issued a news release declaring that Pinal County is "the No. 1 pass-through county in all of America for drug and human trafficking."

It's a line the sheriff has used countless times - most recently on Thursday in testimony before the U.S. Senate Committee on Homeland Security - as he criticizes the federal government for failing to secure the border.

There's just one problem: There is no data to support the assertion.

In fact, an Arizona Republic analysis of statistics from local, state and federal sources found that, while sheriff's officials do bust smugglers and seize pot, Pinal County accounts for only a fraction of overall trafficking.

The newspaper also found that other headline-grabbing claims by Babeu are contradicted by statistical evidence or greatly exaggerated.

I have hypothesized that immigration may have an effect on median income -- not because it is bad for the economy per se but just form the fact of adding millions of new people in the bottom quartiles would tend to shift the median downwards (just the pure math of the thing).

I have only given them a quick glance at this point, but Tyler Cowen links several studies that tend to say my hypothesis is false.

Also, here is an interesting discussion about the median income stagnation hypothesis itself and how sensitive it is to the end point, pointing out in particular that most folks start their analysis from a point within Nixon's wage and price controls, which skew the data - shifting the start point forward even a couple of years makes most of the stagnation go away. He builds on a post by Brink Lindsey showing historic median income growth over a longer time frame, implying the aberration may have been the boom of the 1950s and 1960s rather than the lower growth rates of today.

I would normally find this a fascinating debate if it weren't for the dark cloud behind it that half the folks arguing the point wish to use it as a justification for further reductions in economic liberties.

My Forbes column this week is up, and it is a sort of open letter to Conservatives, trying to demonstrate that their stance against immigration is inconsistent with many of their other principles. A quick exceprt:

Just to be clear, it is perfectly reasonable that the government might set restrictive or difficult eligibility requirements for participation in government activities we normally associate with citizenship, such as voting, holding office and receiving welfare benefits. But selling one's labor or participation in commerce are natural rights to which happenstance of birth location should be irrelevant. It should mean no more to these rights that someone is born today north or south of the Rio Grande river than it meant to our founding fathers that someone was born with or without a hereditary title.

Readers know I oppose recent Arizona immigration legislation and enforcement initiatives. I don't think government should be stepping in to effectively license who can and can't work in this country, and am thus a supporter of open immigration (which is different from citizenship, please note). As I support open immigration, both from a philosophic standpoint as well as a utilitarian perspective, I don't support laws to get tougher on illegal immigrants, any more than I support laws to get tougher on the failed practice of drug prohibition.

That being said, reasonable people can disagree, though some for better reasons than others. But I don't see how all these folks who support tougher laws on immigration with the mantra that it is all about the rule of law can justify this piece of unconstitutional garbage: (Hat tip to a reader)

Buoyed by recent public opinion polls suggesting they're on the right track with illegal immigration, Arizona Republicans will likely introduce legislation this fall that would deny birth certificates to children born in Arizona "” and thus American citizens according to the U.S. Constitution "” to parents who are not legal U.S. citizens. The law largely is the brainchild of state Sen. Russell Pearce, a Republican whose suburban district, Mesa, is considered the conservative bastion of the Phoenix political scene....

The question is whether that would violate the U.S. Constitution. The 14th Amendment states that "all persons, born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." It was intended to provide citizenship for freed slaves and served as a final answer to the Dred Scott case, cementing the federal government's control over citizenship.

But that was 1868. Today, Pearce says the 14th Amendment has been "hijacked" by illegal immigrants. "They use it as a wedge," Pearce says. "This is an orchestrated effort by them to come here and have children to gain access to the great welfare state we've created." Pearce says he is aware of the constitutional issues involved with the bill and vows to introduce it nevertheless. "We will write it right."

I didn't like SB1070 that much, but as ultimately amended it was not nearly as radical as this. I think those of us who feared SB1070 as a first step on a slippery slope should feel vindicated by this.

Proponents of tougher immigration enforcement often use crime as their big scare factor in trying to influence people to their point. Only tougher laws and Joe Arpaio, they caution, stand athwart the coming immigrant rape of Phoenix.

Violent crime fell significantly last year in cities across the U.S., according to preliminary federal statistics, challenging the widely held belief that recessions drive up crime rates.

The incidence of violent crimes such as murder, rape and aggravated assault was down 5.5% from 2008, and 6.9% in big cities. It fell 2.4% in long-troubled Detroit and plunged 16.6% in Phoenix, despite a perception of rising crime that has fueled an immigration backlash....

In Phoenix, police spokesman Trent Crump said, "Despite all the hype, in every single reportable crime category, we're significantly down." Mr. Crump said Phoenix's most recent data for 2010 indicated still lower crime. For the first quarter of 2010, violent crime was down 17% overall in the city, while homicides were down 38% and robberies 27%, compared with the same period in 2009.

Arizona's major cities all registered declines. A perceived rise in crime is one reason often cited by proponents of a new law intended to crack down on illegal immigration. The number of kidnappings reported in Phoenix, which hit 368 in 2008, was also down, though police officials didn't have exact figures.

There is an anti-immigrant playbook in this country that goes back at least to the 1840's and the first wave of Irish immigrants. Typical arguments applied to nearly every wave of immigrants to this country have been 1. They are lazy; 2. They are going to take our jobs (funny in conjunction with #1); 3. They increase crime and 4. They bring disease.

To date in Arizona, we have seen all three of the first arguments in spades, but until recently I had not seen #4. But trust Sheriff Joe to be out front on this, issuing a press release stating:

Sheriff Joe Arpaio says that he has long argued the point that illegal immigration is not just a law enforcement problem but is a potential health hazard as well.

"This is a risk to our community and to my deputies," Arpaio says. "Deputies never know what they may face in the course of enforcing human smuggling laws."

Arpaio says that in the last two months, four inmates, all illegal aliens from the country of Mexico, were confirmed with having chicken pox, placing 160 inmates into immediate medical quarantine.

Earlier Apraio had this to say to GQ magazine (but he's not a racist!)

All these people that come over, they could come with disease. There's no control, no health checks or anything. They check fruits and vegetables, how come they don't check people? No one talks about that! They're all dirty.

Of course, like many of Arpaio's fulminations, this release fell somewhere between a grand exaggeration and an outright lie.

Maricopa County health officials denied reports by the Sheriff's Office that 160 jail inmates had been quarantined two months ago because of four illegal immigrants with chicken pox.

Officials also downplayed a news release issued by Sheriff Joe Arpaio's office last night about chicken pox found in immigrants busted yesterday, noting that such minor outbreaks don't normally make the news.

After our inquiries, MCSO Lieutenant Brian Lee said that Arpaio had, in fact, misspoken when he stated for the news release that a large-scale "quarantine" had taken place.

The title is from a quote by Representative Peter King, lamenting that the Feds might actually have the gall to Mirandize an American citizen who has been arrested.

Miranda warnings are not actually required per se, but statements by un-Mirandized suspects will generally be tossed out of court. So I think the whole Miranda thing is overblown, but Representative King's words tend to summarize for me the slippery slope of civil rights exceptions. Someday, you too may be the "but still."

On top of Mr. King's statement and our local Sheriff's continuing proclivity to walk into businesses and zip-tie everyone with brown skin until they can produce birth certifications (yes, he did it again last month and again the other day) comes Joe Lieberman's new bit of law and order paranoia. Apparently, after watching a 24-hour festival of 1970's Clint Eastwood and Charles Bronson crime dramas, Lieberman proposed:

Sens. Joe Lieberman (I-CT) and Scott Brown (R-MA), joined on the House side by Reps. Jason Altmire (D-PA) and Charlie Dent (R-PA), today introduced a little publicity stunt in legislative form called the Terrorist Expatriation Act, making good on Lieberman's pledge to find a way to strip the citizenship of Americans"”whether naturalized or native born"”who are suspected of aiding terrorist groups. It does so by amending the Immigration and Nationality Act, which lays out the various conditions under which a person may renounce or be deprived of citizenship....

Finally, note that the bill's definition of "material support" for terrorist groups explicitly invokes the criminal statute covering such actions. Which is to say, revocation of citizenship under the new bill is triggered by committing a particular federal crime. Except that the Immigration and Nationality Act only requires that one of the predicates for revocation be established by a "preponderance of the evidence." So in effect, the bill takes what is already a crime and says: Proof of guilt "beyond a reasonable doubt" is no longer a prerequisite for the imposition of punishment for this crime.

"Preponderance of the evidence" is the same standard under which McDonald's lost several million dollars because its coffee was too hot.

Exclusionist Conservatives in Arizona are quick to defend themselves against charges of racism. While I tend to be an pro-immigration hawk, I accept that there are issues, such as the conflict of immigration and the welfare state, where reasonable people can disagree as to solutions without any hint of racism charging the debate. I really, really resist playing the race card on anyone.

However, if Conservatives really want to discourage charges of racism, they need to stop playing on fears of immigrant crime as a main argument in their case (example from Expresso Pundit). Such fears of minority group violence are part and parcel of every racist position in history. The out-group is always vilified as criminal, whether it be blacks in the 60's or Italians and Eastern Europeans earlier in the century or the Irish in the 19th century.

Stop trying to manufacture a crime spree that does not exist. Sure, illegal immigrants commit some murders. So do every other group. There is no evidence they commit such murders at a disproportionate rate. And yes, I understand there are violent, paramilitary gangs roving Northern Mexico, which currently is in a state of chaos, that we really don't want to spill over into Arizona. But this has been a threat for years, and for all the fear, there is no evidence that they are somehow increasing their activities here. And even if they were, laws that give Joe Arpaio additional power to harass day laborers in Phoenix are sure as hell not going to scare them off.

The first concerns the phrase "lawful contact," which is contained in this controversial portion of the bill: "For any lawful contact made by a law enforcement official or a law enforcement agency"¦where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person"¦" Although drafters of the law said the intent of "lawful contact" was to specify situations in which police have stopped someone because he or she was suspected of violating some other law "” like a traffic stop "” critics said it would allow cops to pick anyone out of a crowd and "demand their papers."

So now, in response to those critics, lawmakers have removed "lawful contact" from the bill and replaced it with "lawful stop, detention or arrest." In an explanatory note, lawmakers added that the change "stipulates that a lawful stop, detention or arrest must be in the enforcement of any other law or ordinance of a county, city or town or this state."

"It was the intent of the legislature for "˜lawful contact' to mean arrests and stops, but people on the left mischaracterized it," says Kris Kobach, the law professor and former Bush Justice Department official who helped draft the law. "So that term is now defined."

The second change concerns the word "solely." In a safeguard against racial profiling, the law contained the phrase, "The attorney general or county attorney shall not investigate complaints that are based solely on race, color or national origin." Critics objected to that, too, arguing again that it would not prevent but instead lead to racial profiling. So lawmakers have taken out the word "solely."

"There were misstatements by the opponents of the law that this was written to permit some consideration of race in the enforcement of this law," says Kobach, "and that's not the case at all."

It is hard for me to separate in my mind whether the problem I have with what remains is really with this law or with the individuals whom I know to be tasked with its enforcement. Sheriff Joe Arpaio has a history of pulling over every Mexican he runs into with a broken tail light on his crime sweeps, so in actual practice, the requirement of there being some other crime involved doesn't do much to make me fear profiling any less. But its hard for me to say that checking immigration status of people arrested or detained is unreasonable, so it may be I am just uncomfortable with the overzealous enforcements and Sheriff Joe's patented crime sweeps. (I am still opposed to the socialist definition of property rights that conservatives have adopted in the law).

If the immigration problems in Arizona are really so serious that they merit deep intrusions upon the liberty of citizens who happen to resemble illegal immigrants, than they are serious enough to intrude on the liberty of everyone. Don't make the cops check the status of anyone who they "reasonably suspect" is illegal; make them check the status of everyone, no matter how blond-haired, blue-eyes, and fluent in standard American english they may be. If you forget your license at home, the police detain you, just like they detain anyone of mexican descent, while someone fetches it. If you can't produce a birth certificate, passport, or similar, then you wait in the pokey until they can verify your legal status. No police discretion. No profiling.

Deputies from the Maricopa County Sheriff's Office raided a Mesa landscaping company early Wednesday morning, arresting nearly three dozen people suspected of being in the country illegally.

The raid on offices of Artistic Land Management, on Main Street just west of Dobson Road, happened about 4:30 a.m., according to one worker who was handcuffed and detained before being released when he produced documentation that he was in the country legally"¦.

Juarez estimated about 35 workers were handcuffed with plastic zip-ties while deputies checked for documents. Those who could provide proof they were in the country legally were released, while others were put on buses and taken away.

This is something the bill supporters just don't want to deal with -- the ugly sight of all the brown skinned workers at a location separated out from their peers and zip-tied until they can produce the proper government papers.

Daniel Griswold of Cato offered what I thought was an excellent framework for thinking about immigration and immigration reform:

Requiring successful enforcement of the current immigration laws before they can be changed is a non sequitur. It's like saying, in 1932, that we can't repeal the nationwide prohibition on alcohol consumption until we've drastically reduced the number of moonshine stills and bootleggers. But Prohibition itself created the conditions for the rise of those underground enterprises, and the repeal of Prohibition was necessary before the government could "get control" of its unintended consequences.

Illegal immigration is the Prohibition debate of our day. By essentially barring the legal entry of low-skilled immigrant workers, our own government has created the conditions for an underground labor market, complete with smuggling and day-labor operations. As long as the government maintains this prohibition, illegal immigration will be widespread, and the cost of reducing it, in tax dollars and compromised civil liberties, will be enormous.

Sometimes I just love the Democrats. After fomenting a near meltdown over the Arizona immigration law, with charges of nazism and cries of "show me you papers!" flying hither and yon, the Democrats introduce an immigration framework with what?

Improved papers, of course.

Yes, the Dems screwed the pooch and included a national ID card in their proposed legislation. And a biometric one at that. As someone characterized it, it's a "super Social Security card". Remember when you were assured that your SS card/number was not for identification purposes and never would be. Well Bunky, that was as true as most of the promises politicians make.

Democratic leaders have proposed requiring every worker in the nation to carry a national identification card with biometric information, such as a fingerprint, within the next six years, according to a draft of the measure.

As a final note, for years I have asked strong exclusionist conservatives how they square their opposition to immigration with their desire for freedom of contract and exchange. After all, if commerce is free, do I not have the right to hire anyone I want for a job, no matter where that person was born. Why do Conservatives want to require that all workers have government licenses before they can be hired? It turns out that the ACLU makes the same point in response to the above proposal (from the link above, emphasis added):

"Creating a biometric national ID will not only be astronomically expensive, it will usher government into the very center of our lives. Every worker in America will need a government permission slip in order to work. And all of this will come with a new federal bureaucracy "” one that combines the worst elements of the DMV and the TSA," said Christopher Calabrese, ACLU legislative counsel.

Note to Conservatives-- when the ACLU, founded by Marxists and which to this day resists recognizing property rights, gets out ahead of you on the rights to free exchange and commerce, you are in trouble.

B. FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON. THE PERSON'S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).

Supporters have said this is not about profiling or harassing people with brown skin. So what, other than skin color, does constitute probably cause in this case? Low rider suspension? Mexican music tapes?

Anyone who things Joe Arpaio will not use this to demand that everyone with brown skin has to show their papers has not been paying attention. I have driven around for 3 years with a broken tail light and never been stopped. Had I had brown skin, I would have been stopped years ago. This is the man who went into tony, lilly white Fountain Hills on a crime sweep and somehow 75% of the those arrested were Hispanic.

Here is one example, where deputies entered a local business, zip-tied and detained everyone who had brown skin, and then later released those who could provide their papers:

Deputies from the Maricopa County Sheriff's Office raided a Mesa landscaping company early Wednesday morning, arresting nearly three dozen people suspected of being in the country illegally.

The raid on offices of Artistic Land Management, on Main Street just west of Dobson Road, happened about 4:30 a.m., according to one worker who was handcuffed and detained before being released when he produced documentation that he was in the country legally"¦.

Juarez estimated about 35 workers were handcuffed with plastic zip-ties while deputies checked for documents. Those who could provide proof they were in the country legally were released, while others were put on buses and taken away.

Update: More from the bill, with language Conservatives would tend to oppose on absolutely anything except immigration

E. A LAW ENFORCEMENT OFFICER, WITHOUT A WARRANT, MAY ARREST A PERSON IF THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE PERSON HAS COMMITTED ANY PUBLIC OFFENSE THAT MAKES THE PERSON REMOVABLE FROM THE UNITED STATES.

Update #2:Steve Chapman also doesn't know how to spot an illegal immigrant. But that's OK, neither does our governor:

After signing the new law requiring police to check out people who may be illegal immigrants, Arizona Gov. Jan Brewer was asked how the cops are supposed to know when someone should be screened. "I don't know," she replied. "I do not know what an illegal immigrant looks like."

No kidding. But she has a lot of company in her ignorance. When I called University of Arizona law professor Marc Miller and told him I wasn't sure what some of the law's provisions mean, he replied, "Neither is anyone else on the planet." We will find out what it means after it takes effect, not before.

It is increasingly hard to have an immigration discussion here in Phoenix. The vast majority of residents are absolutely convinced, despite evidence to the contrary, that they are in the middle of an apocalyptic version of the Mariel boatlift and have found themselves surrounded by Tony Montana's ready to carve them up save for Sheriff Joe Arpaio's brave intervention.

You never meet anyone who has actually had a problem with immigrants, and most like the immigrants, even the illegal ones, they know. The other night a friend of mine said that we were all victims - I asked, "how?" Everyone seems to have stories of immigrant hijinx, but they are all like the stories of the lady who put her cat in a microwave -- it happened to someone else. And we do have stories of immigrant crimes on TV, but like shark attacks and extreme weather events, we overestimate their frequency because only certain outliers at the edges of the normal distribution get reported.

As an aside, one of the interesting things about the immigration debate for those of us who have read US history is how amazingly similar current arguments against particularly Mexican immigrants (the commit crime, they don't integrate, they take jobs from Americans) are identical to arguments used against the Irish, Italians, and most eastern Europeans at one time or another. I heard a woman at a part a while back of Slav background talking about how here immigrant grandparents were different than these Mexicans. I told her that the exact same arguments she was using were used against Easter Europeans in the early 20th century, and in fact, and in fact the first real immigration quotas in this country were meant to keep her ancestors out.

As a result, I tend to grab the pro-immigration side in debates, even though I think there are some sensible reasons it probably has to be restricted or restructured, just because I really don't like the vibe coming from the immigration opponents around me. When people take positions out of irrational fear and loathing, I am hugely reluctant to make any sort of common cause even if some of our concerns overlap.

And, as a final thought, the locals are never, ever going to convince me to their side when they trot Joe Arpaio up to the podium to make their case. I have opposed the current immigration law in Arizona less because of any immigration issues and more because Joe does not need any more arbitrary authority. I like what Radley Balko wrote the other day:

Immigration is a thorny issue. But when we stand around and say "we don't want you here", I have to break ranks. When they say "these immigrants are damaging our economy", I have to break ranks. I don't have all the answers as to how to fix the problem, but I know that I refuse to close our country to people who want to live the American Dream. We have to enforce our laws, but when our laws are contrary to the very fabric of America, those laws need to change.

This comes from an email I got from some folks called the Federation for American Immigration Reform.

FAIR's new report, The Environmentalist Guide to a Sensible Immigration Policy examines the relationship between America's mass immigration policies and skyrocketing population growth. It details how both are severely limiting America's ability to make meaningful progress toward important environmental goals.

"Some environmental groups like to pretend that this correlation does not exist," said Dan Stein, President of FAIR. "Because of pressures brought to bear by politically charged special interests demanding open borders, groups sincerely interested in advancing sensible environmental policies remain muzzled on the issue. Overpopulation fueled by uncontrolled immigration - the root cause of most resource depletion - is unfortunately deemed too radioactive to discuss in some circles."

Since the first Earth Day in 1970, U.S. population has grown by 50 percent, or about 100 million people. U.S. population now stands at approximately 308 million and is currently growing by nearly three million a year "“ the equivalent of adding a new Chicago each year. By 2050, an estimated 438 million people will live in this country with more than 80 percent of the increase coming from post-2005 immigrants and their children.

Uh, these people would exist whether they live on one side of the map or the other, its not clear how immigration contributes to over-population, unless they are taking some coldly Malthusian argument that more of them would die young in poverty than do once they improve their lives in the US. Sure, they may be wealthier having come to the US and use more energy and consume more, but my strong sense is that as they come to the US and get wealthier, then their birthrates actually fall, even if they remain higher than the US average.

It's no surprise that Arizonans resent the recent influx of unauthorized foreigners, some of them criminals. But there is less here than meets the eye.

The state has an estimated 460,000 illegal immigrants. But contrary to myth, they have not brought an epidemic of murder and mayhem with them. Surprise of surprises, the state has gotten safer.

Over the last decade, the violent crime rate has dropped by 19 percent, while property crime is down by 20 percent. Crime has also declined in the rest of the country, but not as fast as in Arizona.

Babeu's claim about police killings came as news to me. When I called his office to get a list of victims, I learned there has been only one since the beginning of 2008"”deeply regrettable, but not exactly a trend.

Truth is, illegal immigrants are less likely to commit crimes than native Americans. Most come here to work, and in their desire to stay, they are generally afraid to do anything that might draw the attention of armed people wearing badges.

El Paso, Texas, is next door to the exceptionally violent Ciudad Juarez, Mexico, and easily accessible to illegal entry. Yet it is one of the safest cities in the United States.

As is usual when I make an immigration post (wherein I am supportive of open immigration and suspicious of gung-ho enforcement efforts) I got mail saying that the real concern here is the rule of law. People inevitably want to inform me that this immigration is ILLEGAL (usually in caps) and that these immigrants are BREAKING THE LAW and that the law cannot be enforced unevenly.

First, I am happy to listen to this argument from any commenter who has never broken the speed limit or done a rolling stop at a stop sign.

Second, I would like to offer the rule of law folks, especially those on the right side of the aisle, a thought problem: Soon, it will be illegal to not purchase a health insurance policy that meets specifications set by Congress. It is anticipated, however, given relatively low fines, that many people will break this law and not obtain health insurance. This failure will be ILLEGAL. These people will be criminals. Do those of you who seek higher penalties, more robust enforcement, police sweeps, and reduced standards of probable cause for people committing the crime of illegal immigration also plan to seek the same higher penalties for lawbreakers who do not buy an insurance policy? After all, as you have said, this is not about the law itself but respect for the rule of law.

By your immigration logic, we should be ruthless about lawbreakers who do not have the right insurance policy. We should encourage the Minutemen to patrol for people without health insurance -- after all, they have said that their concern is with people breaking the law, not immigration or Mexicans per se. There should be sweeps where people can be arrested for suspicion of not having health insurance, just as they can be arrested under our new AZ law for suspicion that they do not have a green card.

If there is a difference, please explain it to me. I understand that you may be opposed to open immigration or high immigration rates or immigration by poor uneducated people or whatever. If so, fine, we disagree -- but stop saying that this is all about the rule of law, or telling me we can't pick and choose what laws we violate. Because we do the latter all the time. Our willingness to challenge the state is a large part of American exceptionalism.

PS- Just to avoid misunderstandings from trolls who do not usually read this site, of course I do not advocate the above for health insurance violations. Just as I don't for Mexicans seeking a better life in this country without obtaining a license to do so from the government.

Disclosure: I have several good friends who are illegal immigrants. They are wonderful, hard-working people who have been in this country for years. If we were to conduct tests of people's acceptability to be present in this country, they would pass with scores far ahead of many US citizens.

Radley Balko has a great article on Maricopa County Attorney Andrew Thomas, the wingman for Sheriff Joe Arpaio in any number of abuses of power. I have tried to write about Thomas before, but some of his exploits are so bizarre and complex that they make simple description difficult, but Balko is clearly a better journalist than I and does a good job summarizing some of his most egregious actions.

The common denominator for both Thomas and Arpaio tends to be their near vendetta responses to anyone who either criticizes them or tries to limit their power (ie by denying a search warrant or dismissing one of their cases).

The most recent mess in Maricopa pits Thomas and Apraio against...well, just about everyone else. The two have been squabbling with members of the county board of supervisors for years over the construction of a $341 million county courthouse tower, which both feel is a waste of money. They might have a point. But Arpaio and Thomas are using criminal law as a cudgel in the dispute.

Last month, Thomas indicted two county supervisors on some petty financial disclosure violations. When Maricopa County Superior Court Judge Gary Donahoe issued a ruling pertaining to the court tower investigation that Arpaio and Thomas didn't like, Thomas then indicted Donahoe for bribery, on the absurd premise that as a judge who works in the courthouse, Donahoe (who is retiring soon) would have benefited from the new tower. That indictment came shortly after Donahoe held one of Arpaio's deputies in contempt after a highly-publicized incident in which the deputy was caught on video stealing documents from the file of a defense attorney in open court.

Using criminal charges"”or the threat of them"”to silence political opponents has become something of a habit for Thomas. He has indicted more than a dozen public officials who have criticized him or Arpaio. He has launched or threatened criminal investigations into dozens of others, including politicians, columnists, and other media figures who have dared to criticize him or the sheriff. When Phoenix Mayor Phil Gordon asked for a federal investigation of Arpaio's immigration enforcement tactics, Arpaio and Thomas investigated him too, attempting to snoop on Gordon's email, appointment book, and phone records. Thomas even recently threatened to criminally investigate a defense attorney for issuing public statements in support of his client.

These guys are from the bad, statist end of the Republican pond. Interestingly, Thomas and Arpaio have alienated most of the Republican leadership in Arizona, and rely on their continued popularity with national conservative media and the local populace. The latter is hard to describe to outsiders. Its often hard for me to understand. My best guess is that people ignore Thomas and Arpaio's worst behavior as aimed at people who somehow "don't count," particularly immigrants from Mexico. Balko quotes Clint Bollack of the Goldwater Institute:

Bolick says their perseverance is also due to the polarizing effects of the immigration debate. Immigration "is extremely divisive," he says. "In the eyes of a lot of people, because they're cracking down on illegal immigrants, Thomas and Arpaio can do no wrong. So there's justification for whatever they do, and any criticism of them on any issue is a betrayal of the cause. It's really unfortunate that it's causing a lot of good people to turn a blind eye to ineffective law enforcement and abuses of power."

I don't want to violate Godwin's law here, but this quote springs to mind about the reactions to Thomas and Arpaio (from a member of the German protestant clergy in the 1930s)

First, the Nazis went after the Jews, but I wasn't a Jew, so I didn't react. Then they went after the Catholics, but I wasn't a Catholic, so I didn't object. Then they went after the worker, but I wasn't a worker, so I didn't stand up. Then they went after the Protestant clergy and by then it was too late for anybody to stand up.

Arpaio says he was not well versed on the Fourth Amendment to the U.S. Constitution, or its counterpart in the Arizona Constitution, which prohibit unreasonable searches and seizures.

Yeah, no kidding. This is just kind of bizarre. I get the whole ghost-writer thing, but at least Obama actually seems to have read the book that was ghost-written for him:

Maricopa County Sheriff Joe Arpaio has not read the book he co-authored in 2008, which includes information on Arpaio's philosophy on America's immigration problem and how to cope with the nation's porous borders.

Arpaio's lack of familiarity with the book, "Joe's Law - America's Toughest Sheriff Takes on Illegal Immigration, Drugs and Everything Else That Threatens America," was among the revelations to emerge from a nine-hour deposition the sheriff gave as part of a racial-profiling lawsuit filed against the Sheriff's Office.

Update: There is a spin in the article that Sheriff Joe is just a delegator, like any good corporate executive. I am generally considered to be far more comfortable with delegation than average, and even I know a lot more about my business than Sheriff Joe does about his. Part of the reason is likely that I don't spend 95% of my time on media and PR events to boost my name recognition at public expense. And you can be dang sure that I know certain pieces of legislation that are important to my business, like the Fair Labor Standards Act and the Service Contract Act, better than my lawyers.